Case 1:11-cv-00797-RGA Document 166 Filed 08/03/12 Page 1 of 36 PageID #: 971
`Case 1:11—cv—OO797—RGA Document 166 Filed 08/03/12 Page 1 of 36 Page|D #: 971
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
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`C. A. No. 1:11—cv—OO797—RGA
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`F astVDO LLC,
`
`Plaintiff,
`
`V.
`
`Apple Inc.; Canon U.S.A., Inc.;
`Casio America, Inc.; Cisco Systems, Inc.;
`DXG Technology (U.S.A.) Inc.;
`Eastman Kodak Company;
`Fujifilm North America Corporation;
`Hewlett Packard Company;
`JVC Americas Corporation;
`Lite—On Sales and Distribution, Inc.;
`
`Nikon Americas, Inc.;
`
`Nikon, Inc.; Olympus Imaging America Inc.;
`Panasonic Corporation of North America;
`Samsung Electronics America, Inc.;
`Sanyo North America Corporation;
`Sony Corporation of America, Inc.;
`Sony Electronics, Inc.; and
`Toshiba America, Inc.;
`
`Defendants.
`
`REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS
`
`STIPULATED PROTECTIVE ORDER
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`Plaintiff FastVDO, LLC (“Plaintiff”) and Defendants Apple Inc., Canon U.S.A.,
`
`lnc., Casio America, Inc., DXG Technology (U.S.A.) Inc., Fujifilm North America Corporation,
`
`Hewlett Packard Company, JVC Americas Corporation, Lite—On Sales and Distribution, Inc.,
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`Nikon Americas, lnc., Nikon, Inc.; Olympus Imaging America Inc.; Panasonic Corporation of
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`North America, Samsung Electronics America, Inc., Sanyo North America Corporation, and
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`Toshiba America, Inc. (collectively “Defendants”) anticipate that documents, testimony, or
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`information containing or reflecting confidential, proprietary, trade secret, and/or
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`STIPULATED PROTECTIVE ORDER — PAGE]
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`

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`commercially sensitive information are likely to be disclosed or produced during the course
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`of discovery, initial disclosures, and supplemental disclosures in this case and request that
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`the Court enter this Order setting forth the conditions for treating, obtaining, and using such
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`information.
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`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
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`good cause for the following Agreed Protective Order Regarding the Disclosure and Use of
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`Discovery Materials (“Order” or “Protective Order”).
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`1.
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`PURPOSES AND LIMITATIONS
`
`(a)
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`Protected Material designated under the terms of this Protective Order
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`shall be used by a Receiving Party solely for this case, and shall not be used directly or indirectly
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`for any other purpose whatsoever.
`
`(b)
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`To the extent
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`that any one of Defendants in this litigation provides
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`Protected Material under the terms of this Protective Order to Plaintiff, Plaintiff shall not share
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`that material with the other Defendants in this litigation, absent express written permission from
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`the producing Defendant. This Order does not confer any right to any one Defendant to access
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`the Protected Material of any other Defendant.
`
`(c)
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`The Parties acknowledge that
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`this Order does not confer blanket
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`protections on all disclosures during discovery, or in the course of making initial or supplemental
`
`disclosures under Rule 26(a). The Parties shall use reasonable care in designating confidential
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`materials under this Order.
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`2.
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`DEFINITIONS
`
`(a)
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`“Discovery Material” means all items or information, including from any
`
`non-party, regardless of the medium or manner generated, stored, or maintained (including,
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`STIPULATED PROTECTIVE ORDER — PAGE 2
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`

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`among other things, testimony, transcripts, or tangible things) that are produced, disclosed, or
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`generated in connection with discovery or Rule 26(a) disclosures in this case.
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`(b)
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`“Outside Counsel” means (i) outside counsel who appear on the pleadings
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`as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it
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`is
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`reasonably necessary to disclose the information for this litigation.
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`(c)
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`“Patents-in-suit” means Reissued U.S. Patent No. RE 40,081, and any
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`other patent asserted in this action, as well as any related patents, patent applications, provisional
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`patent applications, continuations, and/or divisionals.
`
`(d)
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`“Party” means any party to this case,
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`including all of its officers,
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`directors, employees, consultants, and their support staffs.
`
`(e)
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`“Producing Party” means any Party or non-party that discloses or produces
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`any Discovery Material in this case.
`
`(f)
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`“Protected Material” means any Discovery Material that is designated as
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`“CONFIDENTIAL,” “CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE,” as provided
`
`for in this Order.
`
`(g)
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`“Receiving Party” means any Party who receives Discovery Material from
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`a Producing Party.
`
`(h)
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`“Source Code” means computer code, scripts, assembly, object code,
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`source code listings and descriptions of source code, object code listings and descriptions of
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`object code, and Hardware Description Language (HDL) or Register Transfer Level (RTL) files
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`that describe the hardware design of any ASIC or other chip. Source code includes, without
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`limitation, human—readable programming language text
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`that defines
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`software,
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`firmware,
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`STIPULATED PROTECTIVE ORDER — PAGE 3
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`

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`electronic hardware descriptions and/or instructions or schematics that define or otherwise
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`describe in detail the algorithms or structure of software. Source code documents at least include
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`(I) printed documents that contain or refer to selected source code components; (2) electronic
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`communications and descriptive documents, such as emails, design documents and programming
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`examples, which contain or refer to selected source code components (“described source code”);
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`(3) electronic source code documents that reside in a source code repository from which software
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`and related data files may be compiled, assembled, linked, executed, debugged and/or tested
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`(“source code files”); and (4) transcripts, reports, video, audio, or other media that include,
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`quote, cite, describe, or otherwise refer to source code, source code files, and/or the development
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`thereof. Source code files include, but are not limited to documents containing source code in
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`“C”, “C++”, Java, Java scripting languages, assembler languages, command languages and shell
`
`languages. Source code files may further include “header files”, “make” files, project files, link
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`files, and other human-readable text files used in the generation, compilation, translation, and/or
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`building of executable software, including software intended for execution by an interpreter.
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`Documents
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`and things produced during the
`
`course of
`
`this
`
`litigation designated as
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`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE” shall be
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`protected in accordance with this Protective Order, subject to additional protections provided
`
`herein below. Nothing in this Protective Order shall obligate the parties to produce any source
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`code nor act as an admission that any particular source code is discoverable.
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`3.
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`COMPUTATION OF TIME
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`The computation of any period of time prescribed or allowed by this Order shall
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`be governed by the provisions for computing time set forth in the Federal Rules of Civil
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`Procedure, Rule 6.
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`STIPULATED PROTECTIVE ORDER — PAGE 4
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`

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`4.
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`SCOPE
`
`(a)
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`The protections conferred by this Order cover not only Discovery Material
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`governed by this Order as addressed herein, but also any information copied or extracted
`
`therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
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`conversations, or presentations by Parties or their counsel in court or in other settings that might
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`reveal Protected Material.
`
`(b)
`
`This Order is without prejudice to the right of any Party to seek further or
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`additional protection of any Discovery Material or to modify this Order in any way, including,
`
`without limitation, an order that certain matter not be produced at all.
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`5.
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`DURATION
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`Even after the termination of this case, the confidentiality obligations imposed by
`
`this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court
`
`order otherwise directs.
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`6.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
`
`(a)
`
`Basic Principles. All Protected Material shall be used solely for this case
`
`or any related appellate proceeding, and not for any other purpose whatsoever, including without
`
`limitation any other litigation, patent prosecution, patent acquisition, patent reexamination or
`
`reissue proceedings, or any business or competitive purpose or function. Protected Material shall
`
`not be distributed, disclosed or made available to anyone except as expressly provided in this
`
`Order.
`
`(b)
`
`Patent Prosecution Bar. Absent the written consent of the Producing
`
`Party, any individual who has accessed (as opposed to merely being able to access) one or more
`
`items designated “CONFIDENTIAL ~ OUTSIDE ATTORNEYS’ EYES ONLY”
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`or
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`STIPULATED PROTECTIVE ORDER — PAGE 5
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`

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`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE” shall not be
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`involved, directly or indirectly, in any of the following activities: advising on, consulting on,
`
`preparing, prosecuting, drafting, editing, and/or amending of patent applications, specifications,
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`claims, and/or responses to office actions, or otherwise affecting the scope of claims in patents or
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`patent applications relating to the functionality, operation, design and/or methods related to
`
`transform methods related to video encoding/decoding, and/or the implementation of any part of
`
`the H.264/MPEG-4 Part 10/Audio Video Coding (“AVC”) video compression standard, before
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`any foreign or domestic agency, including the United States Patent and Trademark Office; and
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`(ii) the acquisition of patents (including patent applications), or the rights to any such patents or
`
`patent applications with the right to sublicense for consideration, relating to the functionality,
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`operation, and design of and/or methods related to transform methods related to video
`
`encoding/decoding, and/or the implementation of any part of the H.264/MPEG-4 Part 10/Audio
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`Video Coding (“AVC”) video compression standard. These prohibitions are not intended to and
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`shall not preclude counsel from participating in reexamination proceedings challenging the
`
`validity of any patent. If any such proceedings are instituted in the future, the Parties agree that
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`Counsel who have accessed “CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY” or
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`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE” materials of
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`Defendants will not participate in such proceedings. These prohibitions shall begin when the
`
`affected individual
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`first accesses “CONFIDENTIAL ~ OUTSIDE ATTORNEYS’ EYES
`
`ONLY” or “CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE”
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`materials, and shall end two (2) years after the final resolution of this action,
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`including all
`
`appeals.
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`STIPULATED PROTECTIVE ORDER — PAGE 6
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`

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`(C)
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`Secure Storage. Protected Material must be stored and maintained by a
`
`Receiving Party at a location and in a secure manner that ensures that access is limited to the
`
`persons authorized under this Order.
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`((1)
`
`Legal Advice Based on Protected Material. Nothing in this Protective
`
`Order shall be construed to prevent counsel from advising their clients with respect to this case
`
`based in whole or in part upon Protected Materials, provided counsel does not disclose the
`
`Protected Material itself except as provided in this Order.
`
`(e)
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`Limitations. Nothing in this Order shall restrict in any way a Producing
`
`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
`
`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
`
`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or
`
`known to the Receiving Party independent of the Producing Party; (iii) previously produced,
`
`disclosed and/or provided by the Producing Party to the Receiving Party or a non-party without
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`an obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
`
`Producing Party; or (V) pursuant to order of the Court.
`
`(f)
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`Cross—Production of Defendant Confidential Material. No Defendant is
`
`required to produce its Protected Material to any other Defendant or Defendants, but nothing in
`
`this Order shall preclude such production,
`
`in which case, Protected Material received by a
`
`Defendant from another Defendant shall be maintained pursuant to this Order. Notwithstanding
`
`the provisions of this Protective Order, Plaintiff shall not disclose one Defendant’s Protected
`
`Material to any other Defendant or Defendants through Court filings, oral argument in Court,
`
`expert reports, deposition, discovery requests, discovery responses, or any other means, without
`
`the express prior consent of the Defendant that produced the Protected Material.
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`STIPULATED PROTECTIVE ORDER — PAGE 7
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`

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`7.
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`DESIGNATING PROTECTED MATERIAL
`
`(a)
`
`Available Designations. Any Producing Party may designate Discovery
`
`Material with any of the following designations, provided that it meets the requirements for such
`
`designations as provided for herein:
`
`“CONFIDENTIAL,” “CONFIDENTIAL — OUTSIDE
`
`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES
`
`ONLY — SOURCE CODE.”
`
`(b)
`
`Written Discovery and Documents and Tangible Things. Written
`
`discovery, documents (which include “electronically stored information,” as that phrase is used
`
`in Federal Rule of Procedure 34), and tangible things that meet the requirements for the
`
`confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
`
`appropriate designation on every page of the written material prior to production, except as
`
`provided for in Paragraph 7(d). For digital files being produced, the Producing Party may mark
`
`the medium, container, and/or communication in which the digital files were contained.
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`In the
`
`event that original documents are produced for inspection,
`
`the original documents shall be
`
`presumed “CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY” during the inspection
`
`and re-designated, as appropriate during the copying process.
`
`(c)
`
`Ilcpositions and Testi_1i_1_t'_1_Qy_. Parties or testifying persons or entities may
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`designate depositions and other testimony with the appropriate designation by indicating on the
`
`record at the time the testimony is given or by sending written notice of how portions of the
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`transcript of the testimony is designated within fourteen (14) days of receipt of the transcript of
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`the testimony.
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`If no indication on the record is made, all
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`information disclosed during a
`
`deposition shall be deemed “CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY” until
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`the time within which it may be appropriately designated as provided for herein has passed. Any
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`STIPULATED PROTECTIVE ORDER - PAGE 8
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`

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`Protected Material that is used in the taking of a deposition shall remain subject to the provisions
`
`of this Protective Order, along with the transcript pages of the deposition testimony dealing with
`
`such Protected Material.
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`In such cases the court reporter shall be informed of this Protective
`
`Order and shall be required to operate in a manner consistent with this Protective Order.
`
`In the
`
`event the deposition is videotaped, the original and all copies of the videotape shall be marked by
`
`the video technician to indicate that the contents of the videotape are subject to this Protective
`
`Order, substantially along the lines of “This videotape contains confidential testimony used in
`
`this case and is not to be viewed or the contents thereof to be displayed or revealed, except
`
`pursuant to the terms of the operative Protective Order in this matter or pursuant to written
`7
`stipulation of the parties.’ Counsel for any Producing Party shall have the right to exclude
`
`from oral depositions, other than the deponent, deponent’s counsel,
`
`the reporter and
`
`videographer (if any), any person who is not authorized by this Protective Order to receive or
`
`access Protected Material based on the designation of such Protected Material. Such right of
`
`exclusion shall be applicable only during periods of examination or testimony regarding such
`
`Protected Material.
`
`((1)
`
`Documents Produced in Native Form
`
`(i)
`
`No one shall seek to use in this litigation a .tiff, .pdf or other image
`
`format version of a document produced in native file format without first (1) providing a copy of
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`the image format version to the Producing Party so that the Producing Party can review the
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`image to ensure that no information has been altered, and (2) obtaining the consent of the
`
`Producing Party, which consent shall not be unreasonably withheld.
`
`(ii)
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`Where electronic files and documents are produced in native
`
`electronic format, such electronic files and documents shall be designated for protection under
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`STIPULATED PROTECTIVE ORDER — PAGE 9
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`

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`Case 1:11-cv-00797-RGA Document 166 Filed 08/03/12 Page 10 of 36 PageID #: 980
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`this Order by appending to the file names or designators information indicating whether the file
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`contains “CONFIDENTIAL,” “CONFIDENTIAL — OUTSIDE ATTORNEYS EYES ONLY,”
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`or “CONFIDENTIAL — OUTSIDE ATTORNEYS EYES ONLY — SOURCE CODE” material,
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`or shall use any other reasonable method for so designating Protected Materials produced in
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`electronic format.
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`(iii) When electronic files or documents are printed for use at
`
`deposition, in a court proceeding, or for provision in printed form to an expert or consultant pre-
`
`approved pursuant to paragraph 12, the party printing the electronic files or documents shall affix
`
`a legend to the printed document corresponding to the designation of the Producing Party and
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`including the production number and designation associated with the native file.
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`8.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
`
`(a)
`
`A
`
`Producing
`
`Party may
`
`designate Discovery Material
`
`as
`
`“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially
`
`sensitive information.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL” may be disclosed only to the following:
`
`(i)
`
`The Receiving Party’s Outside Counsel, such counsel’s immediate
`
`paralegals and staff, and any copying or clerical
`
`litigation support services working at the
`
`direction of such counsel, paralegals, and staff;
`
`(ii)
`
`Not more than three (3) representatives of the Receiving Party who
`
`are officers or employees of the Receiving Party or its affiliates, who may be, but need not be,
`
`in-house counsel for the Receiving Party, as well as their immediate paralegals and staff, to
`
`whom disclosure is reasonably necessary for this case, provided that:
`
`(a) each such person has
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`STIPULATED PROTECTIVE ORDER — PAGE 10
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`

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`agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A;
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`and (b) no unresolved objections to such disclosure exist after proper notice has been given
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`to all Parties as set forth in Paragraph 12 below;
`
`(iii)
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`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such
`
`work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions
`
`of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a
`
`current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at
`
`the time of retention to become an officer, director or employee of a Party or of a competitor of a
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`Party; and (c) no unresolved objections to such disclosure exist after proper notice has been
`
`given to all Parties as set forth in Paragraph 12 below. Without the express prior written consent
`
`of the Defendant that produced the Protected Material, no expert or consultant retained by a
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`Defendant in this matter shall have access to “CONFIDENTIAL” Discovery Material produced
`
`by another Defendant in this matter;
`
`(iv)
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`Court
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`reporters,
`
`stenographers and videographers retained to
`
`record testimony taken in this action;
`
`(V)
`
`The Court, jury, and court personnel;
`
`(vi)
`
`Graphics,
`
`translation, design, and/or trial consulting personnel,
`
`having first agreed to be bound by the provisions of the Protective Order by signing a copy
`
`of Exhibit A;
`
`(vii) Mock jurors who have signed an undertaking or agreement
`
`agreeing not to publicly disclose Protected Material and to keep any information concerning
`
`Protected Material confidential;
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`STIPULATED PROTECTIVE ORDER — PAGE1]
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`

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`(viii) Any mediator who is assigned to hear this matter, and his or her
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`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order;
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`(ix)
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`Any person who appears as the author or as an addressee on the
`
`face of the document or who has been identified by the Producing Party as having been provided
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`with the document or the information by the Producing Party; and
`
`(x)
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`Any other person with the prior written consent of the Producing
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`Party.
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`9.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL —
`
`OUTSIDE ATTORNEYS’ EYES ONLY”
`
`(a)
`
`A Producing
`
`Party may
`
`designate Discovery Material
`
`as
`
`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY” if it contains or reflects
`
`information that is extremely confidential and/or sensitive in nature and the Producing Party
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`reasonably believes that the disclosure of such Discovery Material may cause economic harm or
`
`competitive disadvantage to the Producing Party.
`
`The Parties agree that
`
`the following
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`information, if non-public, shall be presumed to merit the “CONFIDENTIAL — OUTSIDE
`
`ATTORNEYS’ EYES ONLY” designation:
`
`trade secrets, pricing information, financial data,
`
`sales information, sales or marketing forecasts or plans, business plans, sales or marketing
`
`strategy, product development information, licensing agreements, engineering documents, testing
`
`documents, employee information, and other non-public information of similar competitive and
`
`business sensitivity.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY” may be disclosed only to:
`
`STIPULATED PROTECTIVE ORDER — PAGE 12
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`

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`Case 1:11-cv-00797-RGA Document 166 Filed 08/03/12 Page 13 of 36 PageID #: 983
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`(i)
`
`The Receiving Party’s Outside Counsel, provided that
`
`such
`
`Outside Counsel
`
`is not involved in competitive decision-making, as defined by US. Steel v.
`
`United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf ofa Party or a competitor ofa
`
`Party, and such Outside Counsel’s immediate paralegals and staff, and any copying or clerical
`
`litigation support services working at the direction of such counsel, paralegals, and staff;
`
`(ii)
`
`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such
`
`work; and provided that:
`
`(a) such expert or consultant has agreed to be bound by the provisions
`
`of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a
`
`current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at
`
`the time of retention to become an officer, director, or employee of a Party or of a competitor of
`
`a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined
`
`by US. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf ofa Party or a
`
`competitor of a Party; and (d) no unresolved objections to such disclosure exist after proper
`
`notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior
`
`written consent of the Defendant that produced the Protected Material, no expert or consultant
`
`retained by a Defendant in this matter shall have access to “CONFIDENTIAL — OUTSIDE
`
`ATTORNEYS’ EYES ONLY” Discovery Material produced by another Defendant
`
`in this
`
`matter;
`
`(iii)
`
`Court
`
`reporters,
`
`stenographers and videographers retained to
`
`record testimony taken in this action;
`
`(iv)
`
`The Court, jury, and court personnel;
`
`STIPULATED PROTECTIVE ORDER — PAGE 13
`
`

`
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`(V)
`
`Graphics,
`
`translation, design, and/or trial consulting personnel,
`
`having first agreed to be bound by the provisions of the Protective Order by signing a copy
`
`of Exhibit A;
`
`(vi)
`
`Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order;
`
`(vii) Any person who appears as the author or as an addressee on the
`
`face of the document or who has been identified by the Producing Party as having been provided
`
`with the document or the information by the Producing Party; and
`
`(viii) Any other person with the prior written consent of the Producing
`
`Party.
`
`10.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL —
`
`OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE”
`
`(a)
`
`A Producing Party may designate Source Code as “CONFIDENTIAL —
`
`OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE” if it comprises or includes
`
`confidential, proprietary, and/or trade secret Source Code.
`
`(b)
`
`Nothing in this Order shall be construed as a representation or admission
`
`that Source Code is properly discoverable in this action, or to obligate any Party to produce any
`
`Source Code.
`
`(c)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY — SOURCE CODE” shall be
`
`subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to
`
`Paragraph 11 below, solely to:
`
`STIPULATED PROTECTIVE ORDER — PAGE 14
`
`

`
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`(i)
`
`The Receiving Party’s Outside Counsel, provided that
`
`such
`
`Outside Counsel is not involved in competitive decision-making, as defined by US. Steel v.
`
`United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor ofa
`
`Party, and such Outside Counsel’s immediate paralegals and staff, and any copying or clerical
`
`litigation support services working at the direction of such counsel, paralegals, and staff;
`
`(ii)
`
`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such
`
`work; and provided that:
`
`(a) such expert or consultant has agreed to be bound by the provisions
`
`of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a
`
`current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at
`
`the time of retention to become an officer, director or employee of a Party or of a competitor of a
`
`Party; (C) such expert or consultant is not involved in competitive decision-making, as defined by
`
`US. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a
`
`competitor of a Party; and (d) no unresolved objections to such disclosure exist after proper
`
`notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior
`
`written consent of the Defendant that produced the Protected Material, no expert or consultant
`
`retained by a Defendant in this matter shall have access to “CONFIDENTIAL — OUTSIDE
`
`ATTORNEYS’ EYES ONLY — SOURCE CODE” Discovery Material produced by another
`
`Defendant in this matter;
`
`(iii)
`
`Court
`
`reporters,
`
`stenographers and videographers retained to
`
`record testimony taken in this action;
`
`(iv)
`
`The Court, jury, and court personnel;
`
`STIPULATED PROTECTIVE ORDER — PAGE 15
`
`

`
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`
`(v)
`
`Not more than three (3) graphics, translation, design, and/or trial
`
`consulting personnel, provided that:
`
`(a) each such person has agreed to be bound by the
`
`provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved
`
`objections to such disclosure exist after proper notice has been given to all Parties as set
`
`forth in Paragraph 12 below;
`
`(vi)
`
`Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order;
`
`(vii) Any person who appears as the author or as an addressee on the
`
`face of the document or who has been identified by the Producing Party as having been provided
`
`with the document or the information by the Producing Party; and
`
`(viii) Any other person with the prior written consent of the Producing
`
`Party.
`
`11.
`
`DISCLOSURE AND REVIEW OF SOURCE CODE
`
`(a)
`
`Any Source Code that is produced by Plaintiff shall be made available for
`
`inspection in electronic format at the Los Angeles, CA office of its outside counsel, RUSS,
`
`AUGUST & KABAT, or any other location mutually agreed by the Parties. Any Source Code
`
`that is produced by a Producing Party shall be made available for inspection in electronic format
`
`at the offices of the Producing Party’s outside counsel, located within the United States, or any
`
`other location mutually agreed by the Parties. Source Code will be made available for inspection
`
`between the hours of 8 A.M. and 6 P.M. on business days (i.e., weekdays that are not Federal
`
`holidays), although the Parties will be reasonable in accommodating reasonable requests to
`
`conduct inspections at other times.
`
`STIPULATED PROTECTIVE ORDER — PAGE16
`
`

`
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`(b)
`
`Prior to the first inspection of any requested Source Code, the Receiving
`
`Party shall provide twenty—one (21) days notice of the Source Code that it wishes to inspect. The
`
`Receiving Party shall provide five (5) days notice prior to any additional inspections, although
`
`the Parties will be reasonable in accommodating reasonable requests to conduct inspections with
`
`shorter notice.
`
`(c)
`
`Source Code that
`
`is designated “CONFIDENTIAL — OUTSIDE
`
`ATTORNEYS’ EYES ONLY — SOURCE CODE” shall be produced for inspection and
`
`review subject to the following provisions, unless otherwise agreed by the Producing Party:
`
`(i)
`
`All Source Code shall be made available by the Producing Party to
`
`the Receiving Party’s outside counsel and/or experts in a secure room on a secured computer
`
`without Internet access, network access to other computers, or access to external drives or media,
`
`as necessary and appropriate to prevent and protect against any unauthorized copying,
`
`transmission, removal or other transfer of any Source Code outside or away from the computer
`
`on which the Source Code is provided for inspection (the “Source Code Computer” in the
`
`“Source Code Revie